(Reuters) - Someday, either the U.S. Congress or the U.S. Supreme Court is going to have to figure out what obligation businesses owe to disabled customers who want to use their websites and mobile apps.
Must corporations make their digital services equally accessible to disabled customers, even though the Americans with Disabilities Act, which was passed in 1990, makes no mention of websites and mobile apps? Is the ADA triggered when there’s a connection between digital services and the physical businesses that are required to accommodate people with disabilities? Electronic commerce is growing like kudzu. Businesses – which are socked with thousands of ADA website accessibility suits every year – need to know their responsibilities. Customers need to know their rights.
Instead, confusion is deepening. On Wednesday, in Gil v. Winn-Dixie Stores, the 11th U.S. Circuit Court of Appeals vacated a 2017 trial-court ruling that the grocery chain violated the ADA because Juan Carlos Gil, a visually impaired customer, could not use its website and was thus denied equal access to all of Winn-Dixie’s services. The 11th Circuit concluded both that websites are not a “public accommodation” as the ADA defines the term and that Winn-Dixie’s website did not create an “intangible” barrier to its services.
Both holdings conflict with rulings from other circuits – and even divided the 11th Circuit panel that heard the Winn-Dixie case. Judge Elizabeth Branch wrote the majority opinion for herself and U.S. District Judge Danny Reeves of Lexington, Kentucky, sitting by designation. Judge Jill Pryor wrote a lengthy dissent, arguing that the majority is allowing Winn-Dixie to treat Gil “as a second-class customer,” which is exactly what the ADA was intended to prevent.
“There already was a split,” said Winn-Dixie counsel Susan Warner of FisherBroyles. “This heightens it.”
Gil’s counsel, David Ferleger, told me that he and his client are prepared to ask the Supreme Court to take the case, which attracted considerable amicus attention from business groups backing Winn-Dixie and from civil rights advocates who sided with Gil.
“After a year in which the country and the world has become so intimately familiar with the internet,” Ferleger said, “it is shocking that the court would say the internet is not a place in which the public interacts.”
The 11th Circuit majority used a strict textualist approach to determine that websites are not places of public accommodation. The ADA, which demands that disabled people have equal access to goods and services provided by any public place, includes an extensive list of such examples, including stores, hotels, schools, concert venues – pretty much all “physical locations in which individuals will find themselves in their daily lives,” the 11th Circuit said.
But the list is limited to “actual, physical spaces,” the 11th Circuit said. Intangible spaces, like websites, simply aren’t places of public accommodation under the ADA, the court said.
The 11th Circuit is not alone in that conclusion. The 3rd, 6th and 9th Circuits have similarly ruled that under the ADA, “places of public accommodation” must be physical spaces. The 1st and 7th Circuits, however, have said that the ADA’s definition of a public accommodation can extend to virtual or digital spaces. The core purpose of the ADA, the 7th Circuit said in 1999’s Doe v. Mutual of Omaha, is to assure that disabled people can enter and use facilities in the same way as non-disabled people, regardless of whether the spaces are physical or electronic.
Gil had argued that the 11th Circuit did not even need to decide whether websites are places of public accommodation because the trial court didn’t reach the question. U.S. District Judge Robert Scola of Miami instead concluded that Winn-Dixie’s website created an “intangible barrier” that restricted Gil’s full use of the store’s services, citing the 11th Circuit’s 2002 ruling in Rendon v. Valleycrest Productions that the quiz show’s telephone eligibility system violated the ADA because it disadvantaged hearing-impaired contestants.
The majority in the Winn-Dixie decision said that the phone system in the Rendon case was the sole point of entry for anyone who wanted to be a contestant on the game show. By contrast, the majority said, Winn-Dixie’s website – which only permitted customers to refill prescriptions and add coupons to loyalty cards – didn’t restrict Gil’s access to the chain’s physical stores. So even if he could not use the online services available to customers without a visual impairment, the 11th Circuit said, the inaccessible website was not an intangible barrier to his ability to access goods and services at Winn-Dixie’s physical stores.
The 11th Circuit explicitly rejected a legal theory developed by the 9th Circuit in a case similar to Gil’s. In Robles v. Domino’s Pizza, the 9th Circuit ruled that the ADA applied to the pizza chain’s website and mobile app because there is critical nexus between those online services and the physical Domino’s restaurants that fill online orders. If the website and app are inaccessible, the 9th Circuit said, disabled customers are illegally denied full access to the restaurants, which are places of public accommodation.
The 11th Circuit said there’s no basis for the 9th Circuit’s nexus test in the text of the ADA or 11th Circuit precedent. That split, said Gil counsel Ferleger, is another potential avenue to the Supreme Court.
Domino’s asked the high court to review the Robles decision in 2019, with strong backing from many of the same business groups that filed amicus briefs for Winn-Dixie at the 11th Circuit. The Domino’s plaintiff, Guillermo Robles, argued that the justices should allow lower courts to weigh in on the intersection of the ADA and internet services. The Supreme Court denied Domino’s petition – but now Winn-Dixie plaintiff Gil can cite the clear split between the 9th and 11th Circuits.
Winn-Dixie counsel Warner said her client believes it’s ultimately up to Congress, and not the courts, to solve this problem. “Both businesses and visually impaired users need answers,” she said. “But courts are just not in the best position to come up with a standard set of rules for websites.”
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